Opinion Number. 33



Key Legislation


The Minister for Defence

Captain Harrison, the officer commanding the Port Fairy Detachment, Western Artillery, has been served with a notice under the Vermin Destruction Act 1890 to destroy all rabbits or other vermin within the land occupied by the Department in connection with the Battery, and upon the adjacent half-width adjoining roads.

I am asked by the Right Honourable the Minister for Defence to advise whether the Commonwealth Government is bound by this Act.

The Act imposes a duty upon every occupier and every owner of land and on the adjacent half-width of all adjoining roads, and contains provisions for enforcing the performance of this duty. Any occupier or owner of land who after notice fails to destroy all vermin upon the land is subject to penalties, and any inspector under the Act may enter and destroy the vermin at the owner's or occupier's expense.

I am of opinion that this Act does not apply to land which is vested in the Commonwealth for public purposes. Section 52 of the Constitution gives the Federal Parliament exclusive power to make laws with respect to 'all places acquired by the Commonwealth for public purposes'. A State has no power to impose any conditions or obligations upon the ownership or occupation of land by the Commonwealth for public purposes, and no such laws now in force in a State can have any application to land so owned or occupied by the Commonwealth.

At the same time, the Commonwealth ought to take every possible care not to allow vermin to multiply on land in its occupation, and ought to co-operate with the States to the utmost of its ability in carrying out any measures adopted by the States for the extinction of vermin.

I recommend that the State Minister administering the Act be notified that the Commonwealth has no legal obligations under that Act, but beg to suggest to my colleague the Right Honourable the Minister of Defence that the Commonwealth should take effective measures for the extermination of vermin upon the land occupied by the Defence Department.

[Vol. 1, p. 241]

* See also Opinions Nos 130,216.